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Father Moves for a Change in Child Custody


A New York Family Lawyer said the couple was married and had four children together: a 12 year old; a 10 year old; a 9 year old; and a 7 year old. The father left the marital residence and a divorce action was commenced the following month. Following a trial on the issues of equitable distribution, child support, and maintenance held in April 1991, a memorandum decision was issued. Although the father had, during the early stages of the divorce action, stipulated to the mother having custody of the children, he moved, by order to show cause among other things, for a change of child custody to him, with the mother to be given only supervised visitation based upon what he claimed to be the mother’s bizarre and dangerous behavior which was calculated to destroy the children’s relationship with him.

A New York Custody Lawyer said in primary part, the father referred to the mother’s persistent and uncorroborated allegations that he was sexually abusing their children, her continuing to make new claims of abuse even though all other claims had been determined to be unfounded. He suggested the possibility that the mother herself may have caused the youngest child’s vaginal and rectal area to become reddened prior to the mother’s bringing her to the hospital. The father further noted the mother’s ongoing interference with visitation by various other means, including making accusations of sexual abuse and warning him not to engage in such activities in the presence of the children. In the father’s view, a change in child custody was critical to the children’s well-being and mental health.

A Suffolk County Family Lawyer said the mother opposed the application, and the matter was subsequently referred for a hearing before Judicial Hearing Officer. Since the original Law Guardian had died in the interim after having issued his report in the matrimonial matter recommending that the father have unsupervised visitation, the court appointed a new Law Guardian for the children as well as a psychiatrist to conduct forensic examinations and to make a recommendation as to child custody.

A Suffolk County Child Custody Lawyer said in the meantime, while waiting for the forensic evaluations to be concluded, the father sought to have visitation extended to include overnight visits. However, given the pendency of the proceedings and upon the recommendation of the Law Guardian, the court denied the application, notwithstanding the fact that the previously-raised claims of abuse had been determined to be unfounded.

Thereafter, the mother made an application by order to show cause to modify the father’s rights for visitation and to suspend visitation with the youngest child based upon a new charge of sexual abuse against the father involving the youngest child which was alleged to have occurred during a May 2, 1993, visit. Pending the determination of this application, visitation with the youngest child was suspended, and the court subsequently indicated that it meant to suspend visitation with all of the children pending a hearing thereon. It does appear from the record however, that visitation with the other children was subsequently reinstated, as was visitation with the youngest child at a later point.

Following the hearings, which spanned approximately one and one-half years, and notwithstanding the recommendations of both the Law Guardian and the court-appointed psychiatrist in favor of transferring custody to the father, the court ruled that child custody should remain in the mother.

With respect to appellate review of a custody determination, it has been observed that the Appellate Division’s authority in custody matters is as broad as that of the trial court. While due deference is often accorded to the trial court, which has seen and evaluated the evidence and witnesses first hand, the overriding concern is always the best interests of the children, and an appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record and, indeed, is contrary to the weight of the credible evidence.

As is relevant to this case, among the factors to be considered by the court in making a custody determination are the parental guidance the custodial parent provides for the child; the ability of each parent to provide for the child’s emotional and intellectual development; the financial status and ability of each parent to provide for the child; and the overall relative fitness of the parties. Additionally, the effect that an award of custody to one parent might have on the child’s relationship with the other parent is also a proper and relevant consideration.

The existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances. In the end, any determination of child custody must be based upon what is for the best interest of the child, and what will best promote its welfare and happiness.

Applying these basic and well-known legal principles to this case, the trial court’s determination denying the father’s application for a change of custody primarily due to the mother’s interference with visitation and unfounded accusations against him of sexual abuse of their children was an improvident exercise of discretion in view of the record which included recommendations by both the court-appointed psychiatrist and the Law Guardian that the father be given custody of the four minor children.

While it is true that the recommendations of court-appointed experts are but one factor to be considered in making any child custody determination and are not determinative, such recommendations are entitled to some weight, as is the case with respect to the recommendations and findings of the court-appointed Law Guardian, unless such opinions are contradicted by the record.

In this case, after having spent approximately 56 hours meeting with and evaluating the parties and the children, the court-appointed psychiatrist, was of the opinion that it was not in the best interest of the children to remain living in the house with their mother as she is thoroughly incapable of supporting a relationship between the children and their father and has demonstrated this incapacity over the past four years with consistent effort and diligence. Inexplicably, the trial court ignored the unequivocal testimony and recommendation of the court-appointed psychiatrist. In its decision, the court stated that neither the psychiatrist nor the Law Guardian concluded that the mother was materially less fit as a parent. Yet, the record is completely to the contrary. In as clear language as possible, the psychiatrist testified that the mother is unfit, and that’s why the kids shouldn’t live with her.

Although the trial court heard the testimony of both expert and non-expert witnesses as to the problems with the father’s visitation and had the benefit of the psychiatrist’s report, its decision was noticeably silent as to the mother’s persistent interference with visitation. It is clear that the court failed to consider the overwhelming evidence that the mother consistently and willfully interfered in the father’s relationship with the children.

In view of the mother’s consistent preaching to the children that their father was an evil and dangerous man, the trial court incorrectly placed emphasis on the children’s desire to remain with the mother. A child’s preference for a particular parent, while a factor to be considered, cannot be determinative. In weighing the child’s expressed preference, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children.

Moreover, the court also placed undue emphasis on the factor of stability, expressing its belief that a change of child custody would be extremely disrupting to the children. Although stability has been found to be in a child’s best interests, it also cannot be determinative. For, as the Court of Appeals has since observed, while stability is an important consideration, the disruption of change is not necessarily conclusive.

While the Supreme Court also expressed concern over the husband’s lack of hands on parenting experience, when this deficiency is balanced against the evidence concerning the wife’s psychological disorder, and her pattern of distorting the truth, it cannot be gainsaid that the Supreme Court’s decision is supported by a sound and substantial basis in the record, and thus should not be disturbed.

Sometimes couples who separate tend to throw unending accusations against each other that eventually hurt their children. If you want to win a child custody case, the Nassau County Family Lawyer together with the Nassau County Child Support Attorney can help you in the courtroom. A Nassau County Spousal Support Lawyer from Stephen Bilkis and Associates will also be available in case you need their expertise.

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